The SNP and the wider independence movement as a whole are in need of a New Year’s resolution. And that should be to expunge the phrase “illegal referendum” from the vocabulary of independence supporters and from that of SNP politicians in particular. Not only that, but every independence supporter needs to challenge anyone who uses the phrase in the context of a Scottish independence referendum without a Section 30 order. We need to get on top of this particular myth that’s being propagated by our opponents, and to squash it before it gains any more traction. Above all else, what supporters of independence must do is to avoid doing the work of British nationalists for them.
There is only one legal fact about a referendum without a Section 30 order, and that fact is as of now that no one can definitively state whether such a referendum would be lawful or not. The reality is that there are good legal arguments both for and against the lawfulness of a referendum without a Section 30 order. The argument against is that constitutional issues are reserved to Westminster under the Scotland Act. The argument in favour is that a consultative referendum in Scotland on the question of independence does not infringe upon reserved matters as it would remain up to Westminster to act, or not to act, after the people of Scotland have advised them of their view.
The matter has never been legally tested in the only forum which is capable of giving a legal judgement on the matter, and that forum is a court of law. Until such time a referendum without a Section 30 order is a constitutional Schroedinger’s Cat. That means that when anyone tells you that such a referendum would be illegal, they are not giving you a legal fact, they are giving you a political opinion. We must not concede the legal argument before it has been tested.
When as independence supporters we surrender to the language used by our opponents, we are conceding the framing of the argument to them. By using terminology like “unionists versus nationalists” we implicitly concede that the Scottish constitutional debate is a debate between nationalism and non-nationalism. All that does is to justify the opinion of those who try to persuade people who dislike nationalism to oppose independence. It validates the delusion that by opposing independence and therefore implicitly backing the British state, you are somehow making a non-nationalist choice. In fact you’re not.
There are nationalists and non-nationalists on both sides of Scotland’s constitutional divide, and it is one of the strongest arguments of independence supporters that it’s the current and dominant incarnation of British nationalism which is the dangerous, reactionary, and parochial nationalism. So for that reason, as independence supporters we need to avoid using language which continues and bolsters that false narrative. That’s why I prefer to talk about Scottish independence supporters, and British nationalists. As an independence supporter I should not be in the business of fostering the delusions of British nationalism that it’s better than other nationalisms by virtue of not being nationalist at all.
To call opponents of independence “unionists” furthers the equally false narrative that Scotland is a partner in a union, an equal and much loved member of a family of nations. That’s a sick and cruel myth when those who support that so-called union claim that a Prime Minister whose party was rejected at the polls in Scotland in favour of a party asserting the right of Scotland to decide its own future has the absolute right to prevent Scotland from even having the democratic conversation. So let’s not call them unionists. Call them British nationalists. Call them that because it annoys them, because it is more accurate, and because it means we do not participate in perpetuating their false narrative.
A similar argument applies to the phrase “illegal referedum”, or “wildcat referendum”, or “unlawful referendum” when applied to a vote on Scottish independence that does not have the consent of Boris Johnson. Use of these phrases implicitly concedes that the Prime Minister has a democratic, moral, and legal right to prevent a Scottish referendum. Yet his legal right to block an independence referendum remains an unknown quantity because it has never been tested in the courts.
He has no democratic right to block a referendum because his own party stood in Scotland on a manifesto of preventing another independence referendum and lost over half of its seats while the main party standing and asking the people of Scotland to provide it with such a mandate won handsomely. By any democratic standard, there is a political right for Scotland to hold another independence referendum.
Finally there’s the moral right. Scotland is constantly being told by the very people most opposed to independence that within the UK Scotland is a valued and much loved partner, an equal participant in the British family of nations. That was the prospectus upon which a no vote was sold to Scotland in the referendum of 2014. The Westminster parliament itself agreed to the Scottish Claim of Right, which asserts that the people of Scotland have the right to determine the form of government best suited to their needs. There is no rider after it in invisible ink which says “as long as it’s politically convenient for Boris Johnson.”
So whenever a journalist or anti-independence politician uses the phrase “unlawful referendum” or something similar, we must call them out for it. They are using a British nationalist buzz word in an attempt to prejudge the issue and restrict Scotland’s democratic choice. Scotland has an absolute right to decide for itself whether it wishes to revisit the question of independence. We are not as a nation beholden to anyone in pursuit of that right. Using phrases like “unlawful referendum” implies that Scotland is dependent upon the permission of a Conservative Prime Minister, that we are trapped in this UK until such time as the political priorities of forces outwith Scotland concede that it’s in their own interests to allow Scotland a voice. It frames the narrative of a referendum in a way that is beneficial to our opponents.
Our New Year’s resolution needs to be to avoid allowing our opponents to frame the argument. They’re the ones who have just suffered a massive electoral defeat, they’re the ones who are politically and democratically on the back foot. Let’s not do their job for them. There’s no such thing as an illegal referendum in Scotland, because that’s tantamount to claiming that democracy is illegal.
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